Maintaining essential services during strikes: the latest developments from the Administrative Labor Tribunal three years after the amendments to the Labor Code

As important as it may be for collective bargaining, the right to strike is not absolute. In fact, faced with a potential danger threatening public health and safety, certain accredited businesses and associations must refrain from exercising their absolute right to lockout or strike and instead negotiate the essential services that will have to be maintained in the event of stoppage of work.

In this spirit, the National Assembly passed Bill 33[1] modifying the Labor Code[2] in 2019 to include the possibility for any private company to seize the Administrative Labor Tribunal[3] (ALT) to order the maintenance of its essential services during a labor dispute.

Maintenance of essential services within the meaning of the Labor Code

The Labor Code[4] now provides that companies, which it defines as “public service” or similar companies, can obtain an injunction to maintain essential services if a strike in their establishments could potentially threaten public health and safety.

Once such an order has been granted, businesses and certified associations subject to it will be required to negotiate the essential services to be maintained in the event of a strike. No concerted work stoppage can be exercised until an agreement has been concluded or a list has not been submitted for the assessment of the ALT[5].

Businesses explicitly labeled as “utilities” by the LC include[6]:

  • Municipalities or intermunicipalities;
  • Transport services carried out by bus, boat, metro or railway;
  • Companies engaged in the production, transport, distribution or sale of gas or electricity;
  • Ambulance services.

In the past, the maintenance of essential services was ordered periodically by ministerial orders after the expiration of the company collective agreement. The executive branch required companies explicitly labeled as “public services” by the LC to maintain essential services when warranted by a danger to public health and safety.

However, as we have said, Bill 33[7] came into force on October 30, 2019, and gave the ALT the power to issue essential services maintenance orders in respect of businesses explicitly designated as “utilities” in the LC and similar businesses.

One of the objectives of this statutory amendment was to allow the ALT to adapt the orders for the maintenance of essential services to the changing reality of the provision of services to the public, in particular with regard to private companies serving hospitals.[8].

The important point to remember is that this order will be granted if:

  1. The nature of the company’s activities allows it to be assimilated to a “public service”.
  2. An interruption of its activities would constitute a clear danger to public health and safety.

Review of recent case law

In Factory of the parish of Notre-Dame de Montréal[9], administrative judge Irène Zaïkoff listed the criteria to be met for a company to be considered a “public service”[10]:

  • A company that fulfills a public mission which could be or has been provided by the State in the past
  • Provide universal services to a community
  • Provide uninterrupted services
  • Provide services for which no reasonable alternative exist

The administrative judge also said that proof of danger to public health and safety sets a high bar that cannot be reached by proof of mere discomfort or harm to the well-being of citizens.

Since that landmark case, several other judges have consistently applied the same criteria, including:

  1. The Gîte-Ami[11] Case: The maintenance of activities in the event of a strike was ordered to a community organization offering accommodation and meal services to homeless people, since it is the only one in the Outaouais to operate 24 hours a day.
  2. The SOS Domestic Violence[12]case: The employer operates a crisis line to listen to, help and refer victims of domestic violence to the appropriate resources. As it is the only Quebec organization to have identified and mobilized all the relevant resources of the province, its essential services must be maintained during a strike.
  3. The Veolia[13] file: The ALT ordered the continuation of the maintenance services provided by Veolia for the Center Hospitalier de l’Université de Montréal (CHUM) since no competing supplier could intervene in its partnership with the hospital within a reasonable time.
  4. The Center[14] of voluntary action of the Sources and Carrefour of food and sharing St-Barnabé[15] case: Two community organizations providing food and support services to those in need were unable to obtain an order to maintain essential services because similar organizations were operating in their area.
  5. The Carrefour Providence[16] Case: A private CHSLD offering services exclusively to religious people could not be considered a “public service” since it does not offer its services to the entire community. The application for an order to maintain essential services was dismissed.
  6. The Arc-en-Soi community residential center inc.[17] Case: A halfway house offering addiction management and community aftercare services is a “public service” undertaking, but its closure does not pose a danger to public health and safety since offenders will simply have to return to prison when of a labor dispute. The ALT considered that the harm suffered by violators was less serious than the impact on the right to strike.

Take away food

Three years after its entry into force, the new provision of the Labor Code saw actions and the ALT received at least three requests from private companies for the maintenance of essential services in the event of a strike.

Private companies that provide services similar to public services can now seriously consider maintaining certain activities in the event of a strike.

However, the new provision of the Coded did not open the door to employers. The decision makers strictly follow the criteria requiring that the business operate on a continuous basis and that it cannot reasonably be replaced.

This leads us to emphasize that the evidence presented to the ALT in any request to maintain essential services must be serious and extensive. The chances of successfully meeting the above criteria will need to be properly assessed before legal action is taken.

Michelle J. Kelley